Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

03 June 2005

Sentence Fragments

Hopefully, my message this morning was cryptic enough to keep you interested. The indictment is now public (slurped off of PACER, in fact), so I can discuss it.

Since the early to mid 1990s, Martha Ivery, aka Kelly O'Donnell, dba Press-TIGE Publishing, O'Donnell Literary Agency, Writers Information USAgency, etc., has been extracting money (and dreams) from authors. On Wednesday, 01 June 2005, she was indicted on seventeen counts of fraud and related deceptive conduct in Albany (US District Court for the Northern District of New York). U.S. v. Ivery, No. 05CR251 (FSJ) (N.D.N.Y.) (pending). As an exercise in both education and futility, let's try to figure out what her potential sentence might be, shall we?

First, we need to be mindful of the statutory maximums. She was charged principally (pun intended) under 18 U.S.C. § 1341 (mail fraud) and 18 U.S.C. § 152 (false statement in a bankruptcy proceeding), which respectively have 20- and five-year statutory maximum sentences. I don't think we're going to run into that problem.

Next, we need to go to the (now advisory) U.S. Sentencing Guidelines and figure out the "recommended" sentence based on what we know.

Mail fraud is covered in § 2F1.1. The offense level based on the indictment alone is:

6 for the base offense, plus

5 for an indicted loss level of between $40,000 and $70,000, plus

2 for a scheme to defraud more than one victim, plus

2 for a scheme implemented through mass marketing, plus

2 for a misrepresentation during the course of a bankruptcy proceeding, plus

2 for a "sophisticated scheme"

for a total of 19 offense levels.

The false statement in a bankruptcy proceeding could be covered in several places, but is most similar to § 2J1.3. The offense level based on the indictment alone is:

12 for the base offense, plus

3 for substantial interference with the administration of justice

for a total of 15 offense levels.

Each of these threads is also adjusted by other factors. Total adjustments, again based only on the indictment, should include:

for a total of 6 levels of upward adjustments. This leaves us with two threads, bearing offense levels of 26 and 21 respectively.

I'm afraid the fun is just starting. We know about the offense; what about the offender? Chapter Four uses a separate point system based on prior convictions and misconduct while on probation. Without going into details here, we should assume that this particular offender has from 9 to 14 points (depending upon how three incidents are categorized), putting her in criminal history category IV, V, or VI. The Guidelines then cross-reference the two figuresoffense level and criminal history categoryto create a "guideline range." For this particular indictment, and including the effect of the statutory maximum of five years on the perjury count, that looks like this:

Criminal History >

IV

V

VI

Fraud (26)

92115

110137

120150

Perjury (21)

5760

60

60

The numbers in the middle are the guideline months of imprisonment. And I'm afraid that's just the beginning… because the indictment seriously understates the loss attributable to, and number of victims of, this particular scheme. Under recent Supreme Court precedent, that will need to be proven at trial. Based on the documentation I've examined, I'm reasonably confident that an actual loss range of from $500,000 to $800,000 could be proven, adding a net five additional offense levels to the fraud count… and counselling throwing away the key. The worst case then would be a guidelines range of 188235 months, or awfully close to that 20-year statutory maximum! And, too, the ordinary recommendation is that perjury sentences run consecutively with other conduct, not concurrent with them.

This is a rather roundabout way of saying that the "guidelines range"without allowing for possible downward adjustmentsseems to point at a seven-year-plus sentence. The real aggravating factor is Ms. Ivery's criminal history; the most-readily-comparable case, US v. Deering, resulted in a 47-month sentence for the principal… but her criminal history category was only a level I for an operation of roughly the same size.

Note that I was able to talk about criminal conduct in the publishing industry without talking about royalty statements until this very last paragraph…

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